Liles v. Winters Independent School Dist., 10672

• Decision Date: 10 June 1959
• Docket Number: No. 10672,10672
• Citation: 326 S.W.2d 182
• Parties: Vernon LILES, Appellant, v. WINTERS INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 182

326 S.W.2d 182

Vernon LILES, Appellant, v. WINTERS INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 10672.

Court of Civil Appeals of Texas, Austin.

June 10, 1959.

Rehearing Denied June 24, 1959.

Clark, Reed & Clark, Dallas, for appellant.

Yates & Yates, Abilene, for appellee.

GRAY, Justice.

This appeal is from an order overruling appellant's plea of privilege.

Appellee, Winters Independent School District, filed this suit in Runnels County against M. E. McGuire, Aetna Casualty and Guaranty Company, David S. Castle, Jr., Loxit System, Inc., and appellant, Vernon Liles. The suit was for damages alleged to have resulted because of the defective construction or laying of a floor in a gymnasium building. E. M. McGuire was the contractor, Aetna Casualty and Surety Company was a surety on the contractor's performance bond, David S. Castle, Jr., was the architect, Loxit System, Inc., a Chicago Corporation, was the manufacturer of a patented system for laying wooden floors which system was used by the contractor. Appellant was the sales representative for Loxit in Texas.

It was alleged that the specifications for the floor

'called for hard maple flooring laid on a concrete slab by means of what is known as the 'Loxit Floor System' or its equivalent.'

and further that:

'* * * the Loxit System calls for wooden flooring to be held in place by metal clamps attached to metal strips which are bolted or bradded to an underlying concrete slab. The 'Loxit System' was actually used in the gymnasium floors.'

It was further alleged that after the gymnasium was accepted that:

'the wooden flooring 'cupped up' on practically each board and in addition the wooden flooring broke loose from the concrete on large areas and continues to break loose from the concrete in other areas. Where it has broken loose it has created bulges or elevated places on the floor, creating a very uneven surface, so as greatly to detract from its usefulness for all athletic purposes for which it was intended.'

Various acts of negligence were charged against the contractor and the architect and that:

'Defendant 'Loxit System Inc.' by written recommendations made to architects, builders and to the public held forth and represented that the 'Loxit System' was a system 'for beauty, permanence, maintenance easy installation.' That the 'floors can be laid tight.' That they are 'easy and quick to lay'. That the art of laying same can be mastered in a few minutes. That the tenor and purport of said printed literature was that the 'Loxit System' was easy and extremely simple to use. That said literature was read by plaintiffs agents and officials who believed and relied on same. In truth and in fact said system is not simple, and is not easy to learn. The boards cannot be laid tight. A great many collateral circumstances, such as the moisture content of the cement, the soil beneath, that of the atmosphere and the wood flooring and various other conditions are calculated to result in a defective floor. Defendant Loxit System knew said system was subject to all of said collateral contingencies when said representations were made.

'Defendant Liles individually and as the sales representative of Loxit System, Inc. was present during the laying of said floor. He recommended that the floor be put in 'tight' and stated it could not be too tight. The defendant McGuire followed his instructions and got the floor too tight which was a proximate cause of it breaking loose from the concrete slab. Defendant Castle knew of the tight construction of the floor but did nothing to prevent it.'

Appellee prayed for a judgment for its damages against all defendants jointly and severally.

Appellant, Vernon Liles, filed his plea of privilege to be sued in Dallas County, the county of his residence. The plea was duly controverted and at a nonjury trial it was overruled. None of the other defendants filed pleas of privilege.

Only three witnesses testified at the trial: Appellant, appellee's school superintendent, James Nevins, and appellee's president. All witnesses agreed that the floor was in such a damaged state that it was not suitable for a gymnasium floor.

Appellant denied that he was present at the time the floor was laid and denied that he was present when the metal strips were installed on the concrete slab. He said that he was present at the job in company with the president of Loxit System, Inc., and that at that time the concrete slab had not been poured. He said at that time they talked to the contractor and another man he thought was appellee's superintendent; that he talked to McGuire or to his foreman about the manner in which the floor was to be laid, but did not recall what was said. He explained the system he sold as:

'a system of laying wood flooring or planking to the concrete slab, eliminating squeaks, sub-flooring, and use only the floor as furnished by some one else, by some one other than Loxit. The Loxit System is a mechanical system consisting of a series of channels into which--these series of channels are anchored to a concrete slab, and then the flooring is laid on top of the concrete slab and held in place with clips, metal clips, that fit into the channel, in the C type channel.'

He would neither deny nor affirm that he said the floor could not be laid too tight but said the only way to lay the floor is to lay it tight. He said he was called to Winters, that he looked at the floor and that it was in a damaged condition; that he examined the floor to determine what caused it to buckle and that the cause was that it was not laid properly and said:

'* * * The metal strips that lay in this direction. I am going to repeat Mr. Nevin's direction because I am not certain. The metal strips running north and south. Unless those strips are accurate, directly to the concrete slab then the chances are the strips will come up; and we make note of that all the way through the literature. Loxit makes note of that all the way through the literature, and what caused that trouble was the low spots in the slab which you are going to have some time. Nobody is perfect and nobody can lay a perfectly level slab. Loxit, of course, asks you to get one as level as is possible to do so. Then, the metal channels, being some 10 feet long, are shimmed up from the low spots. They are supposed to use longer studs to, to put shims into the slab. If you use the same size stud all the way obviously it is not going to hold, because you are going into material laid in between the concrete between the metal strips which we call grout, and that grout is, we put that grout in there to make the whole surface solid. If you pour the grout before you have placed your anchors you have to mark on the metal strips the depth where you have a void or a low spot so that you can know at that point to shoot down at, because after the grout is laid you don't know where the low spots and high spots are. You only anchor your channels at one end, or to the--or at each end, and shim in under where the low spots take place.

'Q. Did you observe that condition at the Winters Independent School District gymnasium, bubbling? A. Where the floor was that we took up at that bubble, that first bubble that I saw there, the bubble I saw when I visited there, none of the studs were into the slab.

'Q. They were not driven all the way down into the concrete? A. No. They were into the grout and that's all.

'Q. And that is not of sufficient strength to hold the stud? A. No more than a shim is. No.'

The provisions of the contract were in evidence and provided that the flooring should be laid in strict accordance with the manufacturer's specifications which in part are:

'Usually in a Loxit-laid floor the floor boards will not stay tight singly and there is no reason why they should. Simply ease the floor boards up without driving them hard and do not abuse the flooring.

'Proceed in this manner until five or six boards have been laid. Then take a piece of flooring and drive up the five or six boards together. This will assure a good tight floor because the accumulated holding power of the clips will be such that the flooring that is driven up in this way will be tight and stay tight, only the last board or two giving way a little. These, of course, will be taken up in the next drive.'

Appellee's superintendent testified that the flooring used in the gymnasium was No. 1 maple and supposedly the best that could be bought; that when the gymnasium was accepted the floor was smooth and in good condition; that within a few months the boards cupped up on the edges and has continued to get worse and that it is not now suitable for a gymnasium floor. He was asked and testified:

'I was under the impression, as I recall it, that the beauty of this floor was you can--they were told we couldn't drive them too tight, could flood them with water, indestructible and would take any type of abuse a normal floor would not and it stay put.

'Q. Did you hear Mr. Liles make any remarks about the, putting that floor in tight or how tight to put it in when talking to the foreman on that job? A. That was my understanding, it couldn't be too tight.

* * *

* * *

'Q. Talking about Liles. Did you hear Liles, is it your recollection Liles told the foreman it couldn't be laid too tight? A. That was my recollection, sir.

'Q. Now, is this first part of the floor, did that cup up like the other part did? A. This one corner, as I recall, it wasn't driven as tight, and this being McGuire's first floor he said that he was waiting for instructions, and he had been told to drive it tight; and from about, I don't know the exact number of feet, I would say 10 or 12 feet toward the north, from there on, they began to tighten it, and from there on it cupped worse than it did, from...